Claims and Procedures. (a) If either Seller or the Buyer, as applicable (a “Claiming Party”) determines in good faith that any such party or one or more of its respective Indemnitees has a bona fide claim for indemnification pursuant to this Article IX (a “Claim”), such Claiming Party may deliver to the applicable Indemnitor a certificate signed by any officer of such Claiming Party (any certificate delivered in accordance with the provisions of this Section 9.05(a) an “Officer’s Claim Certificate”): (i) stating that an Indemnitee has a Claim for indemnification pursuant to this Article IX and expressly identifying the provisions of this Agreement upon which such claim for indemnification is made in reasonable detail (including the specific representations, warranties and/or covenants that are alleged to be inaccurate or alleged to have been breached); (ii) containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Losses such Indemnitee claims to have actually incurred or suffered or could reasonably be expected to incur or suffer; (iii) specifying in reasonable detail (based upon the information then possessed by the Claiming Party) the material facts known to the Indemnitee giving rise to such Claim; and (iv) providing copies or reasonably detailed summaries of any material documents reflecting or evidencing the basis for such claim (in each case, to the extent then known and in the control of the Claiming Party); provided, that no party shall have any obligation to provide any such materials if doing so would, in the reasonable good-faith discretion of such party, result in the loss of any attorney-client privilege, attorney work product privilege or any other legal privilege. (b) No delay in providing such Officer’s Claim Certificate shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitor, is actually and materially prejudiced thereby, and then only to the extent of such prejudice. (c) If the Indemnitor in good faith objects to any Claim made by the Claiming Party in any Officer’s Claim Certificate, then the Indemnitor shall deliver a written notice (a “Claim Dispute Notice”) to the Claiming Party during the thirty (30)-day period commencing upon receipt by the Indemnitor of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any Claim made by the Claiming Party in the Officer’s Claim Certificate. If the Indemnitor does not deliver a Claim Dispute Notice to the Claiming Party prior to the expiration of such thirty (30)-day period, then (i) each Claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Claiming Party’s favor for purposes of this Article IX on the terms set forth in the Officer’s Claim Certificate, and (ii) subject to the Buyer’s Set Off Right, if such Officer’s Claim Certificate is with respect to a Buyer Indemnitee Claim and the then-remaining Indemnity Holdback Amount is greater than zero, (x) the Indemnity Holdback Amount shall be reduced by an amount equal to the lesser of the amount of the then-remaining Indemnity Holdback Amount and the amount of Losses set forth in such Officer’s Claim Certificate and (y) Seller shall promptly pay, or cause to be paid, to the Buyer, by wire transfer of immediately available funds to the account or accounts designated in writing by the Buyer, the amount of any such Losses not recovered by the reduction of the Indemnity Holdback Amount (if any) and (iii) subject to the Buyer’s Set Off Right, in all other circumstances the Indemnitor shall promptly pay, or cause to be paid, to the Claiming Party, by wire transfer of immediately available funds to the account or accounts designated in writing by such Claiming Party, an amount in cash equal to the Losses set forth in such Officer’s Claim Certificate in accordance with and subject to the limitations of this Section 9.05(e). (d) If the Indemnitor delivers a Claim Dispute Notice, then the Claiming Party and the Indemnitor shall attempt in good faith to resolve any such objections raised by the Indemnitor in such Claim Dispute Notice. If the Claiming Party and the Indemnitor agree to a resolution of such objection, then (i) a memorandum setting forth the matters conclusively determined by such parties shall be prepared and signed by both parties, and (ii) subject to the Buyer’s Set Off Right, if such memorandum provides for payment of Losses in respect of a Buyer Indemnitee Claim and the then-remaining Indemnity Holdback Amount is greater than zero, then (x) the Indemnity Holdback Amount shall be reduced by an amount equal to the lesser of the amount of the then-remaining Indemnity Holdback Amount and the amount of Losses payable to the Buyer as set forth in such memorandum and (y) Seller shall promptly pay, or cause to be paid, to the Buyer, by wire transfer of immediately available funds to the account or accounts designated in writing 77 by the Buyer, the amount of any such Losses not recovered by the reduction of the Indemnity Holdback Amount (if any) and (iii) subject to the Buyer’s Set Off Right, in all other circumstances the Indemnitor shall promptly pay, or cause to be paid, to the Claiming Party, by wire transfer of immediately available funds to the account or accounts designated in writing by such Claiming Party, an amount in cash equal to the Losses payable to the Claiming Party (if any) as set forth in such memorandum in accordance with and subject to the limitations of this Section 9.05. (e) If no such resolution can be reached during the forty-five (45)-day period following a Claiming Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty-five (45)-day period, either Buyer or Seller may bring suit to resolve the objection in accordance with Section 10.11. The final, nonappealable order, decision or ruling of a court of competent jurisdiction in accordance with Section 10.11 as to the validity and amount of any claim in such Officer’s Claim Certificate shall be binding and conclusive upon Buyer and Seller, and (i) with respect to a Buyer Indemnitee Claim that is resolved in favor of a Buyer Indemnitee, subject to the Buyer’s Set Off Right, (x) the Indemnity Holdback Amount shall be reduced by an amount equal to the lesser of the amount then-remaining in the Indemnity Holdback Amount and the amount of Losses set forth in such Officer’s Claim Certificate and (y) Seller shall promptly pay, or cause to be paid, to Buyer, by wire transfer of immediately available funds to the account or accounts designated in writing by Buyer, the amount of any such Losses not recovered from the reduction of the Indemnity Holdback Amount (if any) and (iii) subject to the Buyer’s Set Off Right, in all other circumstances the applicable Indemnitor shall promptly pay, or cause to be paid, to the applicable Indemnitee, by wire transfer of immediately available funds to the account or accounts designated in writing by such Indemnitee, an amount in cash equal to the Losses payable to such Indemnitee (if any) as set forth in such written decision in accordance with and subject to the limitations of this Section 9.05. (f) Notwithstanding anything in this Agreement to the contrary (but, for the avoidance of doubt, without limitation of Buyer’s rights otherwise available under this Section 9.05) following such time as the Buyer Indemnitees are entitled to indemnification for Buyer Losses on the basis of an undisputed claim or claim resolved in the Buyer Indemnitee’s favor, Buyer may, but shall not be obligated to, set off against any Retention Earn-Out Payment or Achieved Earn-Out Payment that becomes payable pursuant to Exhibit B or Exhibit D, such amounts with respect to which the Buyer Indemnitees are entitled to indemnification pursuant to this Article IX, applying such set off amounts against the Retention Earn-Out Payment or Achieved Earn-Out Payment, as applicable, in satisfaction, to the extent of such set off, of such owed Buyer Losses. Buyer’s ▇▇▇ ▇ff right under this Section 9.05(f) is referred to as the “Set Off Right”.
Appears in 1 contract
Claims and Procedures. (a) If either Seller or the Buyer, as applicable (a “Claiming Party”) determines in good faith that any such party or one or more of its respective Indemnitees has a bona fide claim for indemnification pursuant to this Article IX (a “Claim”), such Claiming Party may deliver to the applicable Indemnitor a certificate signed by any officer of such Claiming Party (any certificate delivered in accordance with the provisions of this Section 9.05(a) an “Officer’s Claim Certificate”):
(i) stating that an Indemnitee has a Claim for indemnification pursuant to this Article IX and expressly identifying the provisions of this Agreement upon which such claim for indemnification is made in reasonable detail (including the specific representations, warranties and/or covenants that are alleged to be inaccurate or alleged to have been breached);
(ii) containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims to be entitled to receive, which shall be the amount of Losses such Indemnitee claims to have actually incurred or suffered or could reasonably be expected to incur or suffer;
(iii) specifying in reasonable detail (based upon the information then possessed by the Claiming Party) the material facts known to the Indemnitee giving rise to such Claim; and
(iv) providing copies or reasonably detailed summaries of any material documents reflecting or evidencing the basis for such claim (in each case, to the extent then known and in the control of the Claiming Party); provided, that no party shall have any obligation to provide any such materials if doing so would, in the reasonable good-faith discretion of such party, result in the loss of any attorney-client privilege, attorney work product privilege or any other legal privilege.
(b) No delay in providing such Officer’s Claim Certificate shall affect an Indemnitee’s rights hereunder, unless (and then only to the extent that) the Indemnitor, is actually and materially prejudiced thereby, and then only to the extent of such prejudice.
(c) If the Indemnitor in good faith objects to any Claim made by the Claiming Party in any Officer’s Claim Certificate, then the Indemnitor shall deliver a written notice (a “Claim Dispute Notice”) to the Claiming Party during the thirty (30)-day period commencing upon receipt by the Indemnitor of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any Claim made by the Claiming Party in the Officer’s Claim Certificate. If the Indemnitor does not deliver a Claim Dispute Notice to the Claiming Party prior to the expiration of such thirty (30)-day period, then (i) each Claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Claiming Party’s favor for purposes of this Article IX on the terms set forth in the Officer’s Claim Certificate, and (ii) subject to the Buyer’s Set Off Right, if such Officer’s Claim Certificate is with respect to a Buyer Indemnitee Claim and the then-remaining Indemnity Holdback Amount is greater than zero, (x) the Indemnity Holdback Amount shall be reduced by an amount equal to the lesser of the amount of the then-remaining Indemnity Holdback Amount and the amount of Losses set forth in such Officer’s Claim Certificate and (y) Seller shall promptly pay, or cause to be paid, to the Buyer, by wire transfer of immediately available funds to the account or accounts designated in writing by the Buyer, the amount of any such Losses not recovered by the reduction of the Indemnity Holdback Amount (if any) and (iii) subject to the Buyer’s Set Off Right, in all other circumstances the Indemnitor shall promptly pay, or cause to be paid, to the Claiming Party, by wire transfer of immediately available funds to the account or accounts designated in writing by such Claiming Party, an amount in cash equal to the Losses set forth in such Officer’s Claim Certificate in accordance with and subject to the limitations of this Section 9.05(e).
(d) If the Indemnitor delivers a Claim Dispute Notice, then the Claiming Party and the Indemnitor shall attempt in good faith to resolve any such objections raised by the Indemnitor in such Claim Dispute Notice. If the Claiming Party and the Indemnitor agree to a resolution of such objection, then (i) a memorandum setting forth the matters conclusively determined by such parties shall be prepared and signed by both parties, and (ii) subject to the Buyer’s Set Off Right, if such memorandum provides for payment of Losses in respect of a Buyer Indemnitee Claim and the then-remaining Indemnity Holdback Amount is greater than zero, then (x) the Indemnity Holdback Amount shall be reduced by an amount equal to the lesser of the amount of the then-remaining Indemnity Holdback Amount and the amount of Losses payable to the Buyer as set forth in such memorandum and (y) Seller shall promptly pay, or cause to be paid, to the Buyer, by wire transfer of immediately available funds to the account or accounts designated in writing 77 by the Buyer, the amount of any such Losses not recovered by the reduction of the Indemnity Holdback Amount (if any) and (iii) subject to the Buyer’s Set Off Right, in all other circumstances the Indemnitor shall promptly pay, or cause to be paid, to the Claiming Party, by wire transfer of immediately available funds to the account or accounts designated in writing by such Claiming Party, an amount in cash equal to the Losses payable to the Claiming Party (if any) as set forth in such memorandum in accordance with and subject to the limitations of this Section 9.05.
(e) If no such resolution can be reached during the forty-five (45)-day period following a Claiming Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty-five (45)-day period, either Buyer or Seller may bring suit to resolve the objection in accordance with Section 10.11. The final, nonappealable order, decision or ruling of a court of competent jurisdiction in accordance with Section 10.11 as to the validity and amount of any claim in such Officer’s Claim Certificate shall be binding and conclusive upon Buyer and Seller, and (i) with respect to a Buyer Indemnitee Claim that is resolved in favor of a Buyer Indemnitee, subject to the Buyer’s Set Off Right, (x) the Indemnity Holdback Amount shall be reduced by an amount equal to the lesser of the amount then-remaining in the Indemnity Holdback Amount and the amount of Losses set forth in such Officer’s Claim Certificate and (y) Seller shall promptly pay, or cause to be paid, to Buyer, by wire transfer of immediately available funds to the account or accounts designated in writing by Buyer, the amount of any such Losses not recovered from the reduction of the Indemnity Holdback Amount (if any) and (iii) subject to the Buyer’s Set Off Right, in all other circumstances the applicable Indemnitor shall promptly pay, or cause to be paid, to the applicable Indemnitee, by wire transfer of immediately available funds to the account or accounts designated in writing by such Indemnitee, an amount in cash equal to the Losses payable to such Indemnitee (if any) as set forth in such written decision in accordance with and subject to the limitations of this Section 9.05.
(f) Notwithstanding anything in this Agreement to the contrary (but, for the avoidance of doubt, without limitation of Buyer’s rights otherwise available under this Section 9.05) following such time as the Buyer Indemnitees are entitled to indemnification for Buyer Losses on the basis of an undisputed claim or claim resolved in the Buyer Indemnitee’s favor, Buyer may, but shall not be obligated to, set off against any Retention Earn-Out Payment or Achieved Earn-Out Payment that becomes payable pursuant to Exhibit B or Exhibit D, such amounts with respect to which the Buyer Indemnitees are entitled to indemnification pursuant to this Article IX, applying such set off amounts against the Retention Earn-Out Payment or Achieved Earn-Out Payment, as applicable, in satisfaction, to the extent of such set off, of such owed Buyer Losses. Buyer’s B▇▇▇ ▇ff ▇’s set off right under this Section 9.05(f) is referred to as the “Set Off Right”.
Appears in 1 contract
Sources: Equity Purchase Agreement (Blade Air Mobility, Inc.)
Claims and Procedures. (a) Claim Certificate. If either Seller any Purchaser Indemnified Party has or the Buyerclaims to have incurred or suffered Losses for which it is, as applicable (a “Claiming Party”) determines in good faith that any such party or one may be entitled to, indemnification, compensation or more of its respective Indemnitees has a bona fide claim for indemnification reimbursement pursuant to this Article IX (a “Claim”)IX, such Claiming Party the Purchaser may deliver to the applicable Indemnitor Seller a certificate signed by any officer of such Claiming Party the Purchaser (any certificate delivered in accordance with the provisions of this Section 9.05(a) an IX.03(a), a “Officer’s Claim Certificate”):
(i1) stating that an Indemnitee has a Claim for Purchaser Indemnified Party believes that there is or may have been a breach of a representation, warranty or covenant contained in this Agreement or that such Purchaser Indemnified Party is or may otherwise be entitled to indemnification pursuant to this under Article IX and expressly identifying the provisions of this Agreement upon which such claim for indemnification is made in reasonable detail (including the specific representations, warranties and/or covenants that are alleged to be inaccurate or alleged to have been breached)Agreement;
(ii2) to the extent possible, containing a good faith non-binding, preliminary estimate of the amount to which such Indemnitee claims Purchaser Indemnified Parties claim to be entitled to receive, which shall be the amount of Losses such Indemnitee Purchaser Indemnified Party claims to have actually so incurred or suffered or could reasonably be expected to incur or suffer;suffer (the aggregate amount of such estimate, as it may be modified by each Purchaser Indemnified Party in good faith from time to time, being referred to as the “Claimed Amount”); and
(iii3) specifying in reasonable detail containing a brief description (based upon the information then possessed by the Claiming Purchaser Indemnified Party) of the material facts known to the Indemnitee Purchaser Indemnified Party giving rise to such Claim; and
(iv) providing copies or reasonably detailed summaries of any material documents reflecting or evidencing the basis for such claim (in each case, to the extent then known and in the control of the Claiming Party); provided, that no party shall have any obligation to provide any such materials if doing so would, in the reasonable good-faith discretion of such party, result in the loss of any attorney-client privilege, attorney work product privilege or any other legal privilege.
(b) claim. No delay in providing such Officer’s Claim Certificate within the applicable Survival Period shall affect an Indemniteea Purchaser Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnitor, Seller is actually and materially prejudiced thereby, and then only to the extent of such prejudice.
(c) If the Indemnitor in good faith objects to any Claim made by the Claiming Party in any Officer’s Claim Certificate, then the Indemnitor shall deliver a written notice (a “Claim Dispute Notice”) to the Claiming Party during the thirty (30)-day period commencing upon receipt by the Indemnitor of the Officer’s Claim Certificate. The Claim Dispute Notice shall set forth in reasonable detail the principal basis for the dispute of any Claim made by the Claiming Party in the Officer’s Claim Certificate. If the Indemnitor does not deliver a Claim Dispute Notice to the Claiming Party prior to the expiration of such thirty (30)-day period, then (i) each Claim for indemnification set forth in such Officer’s Claim Certificate shall be deemed to have been conclusively determined in the Claiming Party’s favor for purposes of this Article IX on the terms set forth in the Officer’s Claim Certificate, and (ii) subject to the Buyer’s Set Off Right, if such Officer’s Claim Certificate is with respect to a Buyer Indemnitee Claim and the then-remaining Indemnity Holdback Amount is greater than zero, (x) the Indemnity Holdback Amount shall be reduced by an amount equal to the lesser of the amount of the then-remaining Indemnity Holdback Amount and the amount of Losses set forth in such Officer’s Claim Certificate and (y) Seller shall promptly pay, or cause to be paid, to the Buyer, by wire transfer of immediately available funds to the account or accounts designated in writing by the Buyer, the amount of any such Losses not recovered by the reduction of the Indemnity Holdback Amount (if any) and (iii) subject to the Buyer’s Set Off Right, in all other circumstances the Indemnitor shall promptly pay, or cause to be paid, to the Claiming Party, by wire transfer of immediately available funds to the account or accounts designated in writing by such Claiming Party, an amount in cash equal to the Losses set forth in such Officer’s Claim Certificate in accordance with and subject to the limitations of this Section 9.05(e).
(d) If the Indemnitor delivers a Claim Dispute Notice, then the Claiming Party and the Indemnitor shall attempt in good faith to resolve any such objections raised by the Indemnitor in such Claim Dispute Notice. If the Claiming Party and the Indemnitor agree to a resolution of such objection, then (i) a memorandum setting forth the matters conclusively determined by such parties shall be prepared and signed by both parties, and (ii) subject to the Buyer’s Set Off Right, if such memorandum provides for payment of Losses in respect of a Buyer Indemnitee Claim and the then-remaining Indemnity Holdback Amount is greater than zero, then (x) the Indemnity Holdback Amount shall be reduced by an amount equal to the lesser of the amount of the then-remaining Indemnity Holdback Amount and the amount of Losses payable to the Buyer as set forth in such memorandum and (y) Seller shall promptly pay, or cause to be paid, to the Buyer, by wire transfer of immediately available funds to the account or accounts designated in writing 77 by the Buyer, the amount of any such Losses not recovered by the reduction of the Indemnity Holdback Amount (if any) and (iii) subject to the Buyer’s Set Off Right, in all other circumstances the Indemnitor shall promptly pay, or cause to be paid, to the Claiming Party, by wire transfer of immediately available funds to the account or accounts designated in writing by such Claiming Party, an amount in cash equal to the Losses payable to the Claiming Party (if any) as set forth in such memorandum in accordance with and subject to the limitations of this Section 9.05.
(e) If no such resolution can be reached during the forty-five (45)-day period following a Claiming Party’s receipt of a given Claim Dispute Notice, then upon the expiration of such forty-five (45)-day period, either Buyer or Seller may bring suit to resolve the objection in accordance with Section 10.11. The final, nonappealable order, decision or ruling of a court of competent jurisdiction in accordance with Section 10.11 as to the validity and amount of any claim in such Officer’s Claim Certificate shall be binding and conclusive upon Buyer and Seller, and (i) with respect to a Buyer Indemnitee Claim that is resolved in favor of a Buyer Indemnitee, subject to the Buyer’s Set Off Right, (x) the Indemnity Holdback Amount shall be reduced by an amount equal to the lesser of the amount then-remaining in the Indemnity Holdback Amount and the amount of Losses set forth in such Officer’s Claim Certificate and (y) Seller shall promptly pay, or cause to be paid, to Buyer, by wire transfer of immediately available funds to the account or accounts designated in writing by Buyer, the amount of any such Losses not recovered from the reduction of the Indemnity Holdback Amount (if any) and (iii) subject to the Buyer’s Set Off Right, in all other circumstances the applicable Indemnitor shall promptly pay, or cause to be paid, to the applicable Indemnitee, by wire transfer of immediately available funds to the account or accounts designated in writing by such Indemnitee, an amount in cash equal to the Losses payable to such Indemnitee (if any) as set forth in such written decision in accordance with and subject to the limitations of this Section 9.05.
(f) Notwithstanding anything in this Agreement to the contrary (but, for the avoidance of doubt, without limitation of Buyer’s rights otherwise available under this Section 9.05) following such time as the Buyer Indemnitees are entitled to indemnification for Buyer Losses on the basis of an undisputed claim or claim resolved in the Buyer Indemnitee’s favor, Buyer may, but shall not be obligated to, set off against any Retention Earn-Out Payment or Achieved Earn-Out Payment that becomes payable pursuant to Exhibit B or Exhibit D, such amounts with respect to which the Buyer Indemnitees are entitled to indemnification pursuant to this Article IX, applying such set off amounts against the Retention Earn-Out Payment or Achieved Earn-Out Payment, as applicable, in satisfaction, to the extent of such set off, of such owed Buyer Losses. Buyer’s ▇▇▇ ▇ff right under this Section 9.05(f) is referred to as the “Set Off Right”.
Appears in 1 contract
Sources: Share Purchase Agreement